Non-immigrants in most status categories may change to H-1B status. The most common exception is non-immigrants in J1 status who are subject to the two-year foreign residency requirement.
Two-Year Home Residency Requirement (212e)
The Exchange Visitor Program is based on the assumption that you will return to your home country upon completion of the program, to share knowledge and experiences. For some Exchange Visitors, a mandatory two-year home residency is required before you will be allowed to change or adjust to certain non-immigrant or immigrant statuses in the United States. Through this provision, DOS helps to ensure that your home country benefits from your educational and cultural exchange activity upon your return.
If you are subject to this requirement, you will not be eligible for an H-1B Temporary Worker visa, an L non-immigrant visa, or an immigrant visa at a U.S. Consulate until you have physically resided in your home country of residence for two years. (The option to receive a waiver of this requirement does exist. Contact your Responsible Officer at ISSS for more information.) For the terms of the requirement, please review item 1(a) on the second page of your form DS-2019. If you have any questions about the Two-Year Home Residence requirement, including whether or not you will be subject to it, please ask the U.S. Consulate Officer when you apply for your visa, or ask a Responsible Officer at ISSS when you arrive.
H-1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act of 1990 defines specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation."
To qualify as a "specialty occupation" the position must meet the following requirements. All five criteria must be met:
A baccalaureate or higher degree (or its equivalent) is normally the minimum requirement for entry into the particular profession.
The degree requirement is common to the industry.
The employer must normally require a degree or its equivalent for the position.
The job duties must be "so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree."
The position's level of responsibility and authority must be "commensurate with professional standing."
To qualify for H-1B status, you must possess the required degree or its equivalent, or possess a certificate or license that permits you to immediately practice the profession in the state of intended employment.
Once a petition to change status to H-1B has been filed and received by USCIS, you may NOT travel outside the U.S. If you do travel outside the U.S., the H-1B petition will automatically be approved for consulate notification rather than for a change of status. Please discuss any travel plans with an ISSS advisor PRIOR to filing a request to change status to H-1B.
Unless otherwise authorized to work in your current status, a change of status MUST be approved before you may begin to work in H-1B status.
If you are currently in H-1B status and are changing your employment to Emory University, you may begin working for Emory only after Emory's H-1B petition has been submitted to USCIS, and an official USCIS receipt notice documenting this fact has been received.